Notice of Lis Pendens
(Eminent Domain)

Summary

This template notice of lis pendens is for use by a governmental body in an eminent domain proceeding. A lis pendens gives constructive notice to purchasers and third parties that title to real property is the subject of litigation. This notice should be filed with or immediately after the filing with the court of the condemnor's petition. This template includes practical guidance, drafting notes, and optional clauses. In most jurisdictions, the condemning authority seeking a court order to acquire real property must file a notice of pendency in the office of the clerk of each county where the real property is located. The notice of pendency is a notice of a pending action. It provides constructive notice to innocent third parties that title or a property interest is subject to litigation and that they may be bound by an adverse judgment. A lis pendens affects the title to (or possession of) the real property, and its filing creates a cloud or defect in title that will interfere not only with any intended transfer of the property, but also with any planned financing. Generally, a notice of pendency should contain the following information: • The object of the proceeding • A description of the property to be acquired –and– • The name(s) of the condemning authority and each defendant property owner See, e.g., Tex. Prop. Code § 12.007(b). See also Nichols on Eminent Domain 407. For property owners who are unknown, a statement to that effect should also be made in the notice of pendency where the jurisdiction requires unknown owners to be addressed in the complaint or petition (see, e.g., Ariz. Rev. Stat. § 12-1117; USCS Fed Rules Civ Proc R 71.1(c)(3)). Service of the notice on unknown owners/defendants should be made by publication. See Nichols on Eminent Domain § 26A.04. State law should be consulted prior to filing suit since many jurisdictions first require the government to negotiate with the property owner in good faith and to provide the owner with a written offer, typically based on a current appraisal. See, e.g., Fla. Stat. Ann. § 73.015. Laws governing notices of lis pendens can vary significantly from state to state. In many states, notices of pendency are governed by statute, and statutory requirements must be complied with or there is a risk the lis pendens will be declared void or invalid. Even in states with statutory requirements, however, there are instances relating to the extraterritorial jurisdiction of a lis pendens in which the law requires that all common law elements also be met. See, e.g., Boca Petroco, Inc. v. Petroleum Reality II, LLC., 285 Ga. 487 (2009). As a general matter, an abuse or filing of a lis pendens for an improper purpose can constitute a slander of title and create liability for the party filing the notice. See, e.g., Carrozza v. Voccola, 90 A.3d 142 (R.I. 2014). For more information on lis pendens in general, see Powell on Real Property § 82A.01 et seq. If the condemning authority is a federal body or agency (e.g., a taking to widen an interstate highway), modify this template accordingly. For more information on federal procedure see, USCS Fed Rules Civ Proc R 71.1 and Nichols on Eminent Domain § 27.01 et seq. This template is non-jurisdictional. Be sure to consult state law for any additional requirements as to content, filing, service, and recording. See, e.g., Fla. Stat. Ann. § 48.23(1)(c). For more information on notices of pendency in eminent domain proceedings and eminent domain in general, see Nichols on Eminent Domain § 24.01 et seq. For an overview of state eminent domain laws and restrictions on permissible public use in the 50 states, the District of Columbia, and U.S. Territories, see Eminent Domain State Law Survey.